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AfricanLII – An Approach to Developing Free Access

to Law in Africa

Kerry Anderson

Mariya Badeva-Bright

Tererai Mafukidze

Context and background

The effort to provide free access to law via the Internet began with the establishment

of the Legal Information Institute at Cornell Law School in 1992. Many Legal

Information Institutes (LIIs) have been established since, loosely organizing in the

Free Access to Law Movement. LIIs are independent Internet-based legal

information providers, most often associated with an academic institution, and less

frequently under the aegis of a court or independent trust. Some (notably in Australia,

Canada, and Kenya) provide comprehensive access to all primary legal information in

the country; others are more research-oriented, or specialize more narrowly in the

materials they provide. In general, LIIs have been successful in leading by example,

directly and indirectly shaping positive action by the creators of legal information to

open up primary sources to the public at no cost. They exist under a variety of

business and governance models, but it is fair to say that in recent years there has

been increased emphasis on entrepreneurial models, sustainability, and rigorous self-

evaluation as part of the basic structure of LII operations.

Access to Law in Africa: A major challenge

Access to law is important to civil society, the rule of law, and to the economic life of

everyone in the region, but law is hard to get in Africa. In his book, The Rule of

Law,1 Lord Bingham discusses various principles that make up the common legal

aphorism „Rule of Law‟. He notes that one of the most important principles is the

1 Tom Bingham, The Rule of Law‟, Penguin Books, 2010

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accessibility of the law: „The Law must be accessible and so far as possible

intelligible, clear and predictable’.

Lord Bingham justifies this principle of the Rule of Law on three grounds in the

following words;

1. „First, and most obviously, if you and I are liable to be prosecuted, fined and

perhaps imprisoned for doing or failing to do something, we ought to be able,

without undue difficulty, to find out what it is we must or must not do on pain

of criminal penalty.‟2

2. „If we are to claim the rights which the civil (that is, non-criminal) law gives

us, or to perform the obligations which it imposes on us, it is important to

know what our rights or obligations are. Otherwise we cannot claim the rights

or perform the obligations.‟3

3. The third reason is rather less obvious, but extremely compelling. It is that the

successful conduct of trade, investment and business generally is promoted by

a body of accessible legal rules governing commercial rights and obligations.

No one would choose to do business, perhaps involving large sums of money,

in a country where parties‟ rights and obligations were vague or undecided.‟4

The reasons vary from place to place. In some, there has never been a timely means of

publishing judicial opinions, legislation, and policy documents. In others, access is

late in coming or prohibitively expensive. Legal Information Institutes – open-access

legal information publishers – promise free access for all; but structuring, starting up,

and maintaining LIIs each pose complicated contextual challenges. The AfricanLII

has been set up with the specific purpose of developing and supporting a sustainable

community of African LIIs.

In Africa, real cases illustrate the problem of access to law. Precedent plays an

important part in the legal system. Precedents are often binding and are the law.

Access to precedents is central to the administration of justice. They ensure that there

2 At page 37

3 At page 38

4 Ibid

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is certainty in the law. They ensure that the judicial officer performs his or tasks in

accordance with the law. In his seminal paper "Why Write Judgments?" delivered to

an Australian Supreme Court Judges' Conference, Sir Frank Kitto notes:

"The process of reasoning which has decided the case must itself be exposed to

the light of day, so that all concerned may understand what principles and

practice of law and logic are guiding the courts, and so that full publicity may be

achieved which provides, on the one hand, a powerful protection against any

tendency to judicial autocracy and against any erroneous suspicion of judicial

wrongdoing and, on the other hand, an effective stimulant to judicial high

performance."

In addition, precedent ensures that many unnecessary appeals are averted. Precedents

represent a deliberate and organic development of the law. And yet precedents are

often unavailable in their original form.

In Masangano v Attorney General & Others – an important Malawi prisoners‟ rights

case decided in 2009 – the court refers to a landmark case (Moyo) decided earlier the

same year in the same Division. The Moyo judgment was never published -- the

public law reporting in Malawi stopped years ago and the electronic reporting of

judgments was at the time in its infancy. Judge Mzikamanda resorted to an

unorthodox method of supporting his judicial reasoning: he referred to the Southern

Africa Litigation Centre's (SALC) blog as a source of information on the Moyo

judgment. Happily, that report was an accurate one, even though SALC was

reporting its role as an advocate and not the reasoning of the court. Even a story with

a happy ending shows that adjudication is compromised and diminished by an

absence of credible law reporting.

The African scenario has played itself in other parts of the world in some degree. It

was once so desperate for the Court of Appeal of England and Wales to distribute a

judgment that clarified a point of procedure that had caused a lot of confusion

countrywide that it opened its 1997 judgment with this wish;

“The text of this judgment is to be made available immediately on the Internet.

If this country was in the same happy position as Australia, where the

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administration of the law is benefiting from the pioneering enterprise of

Australian Legal Information Institute (AUSTLII), we would have been able to

make this judgment immediately available in electronic form to every judge

and practitioner in the country without the burdensome costs that distribution

of hard copies would necessarily impose ...." 5

Judges, lawyers, government, and the public all need comprehensive, accurate

sources of primary legal materials meaningful access to law and justice. LIIs can, and

have, provided those sources, but much remains to be done. Judgments of courts are

law in countries that base their legal systems on precedent.

In now turn to economic benefits.

Legislatures, ministries, and regulatory agencies affect civil society and economic life

in every sector in every country. A review of the World Bank 2011 Report on the

ease of doing business in African countries juxtaposed with a view of the current

availability of legal information in those African countries is striking. Although

existing LIIs in Africa provide access to case law from Southern and East Africa, free

access to legislation is still sparsely available for countries in this region. Legislation

is more difficult to collect and consolidate due to the lack of government policies and

the general lack of consolidated collections. Case law and legislation as free

electronic resources are largely unavailable from West, Central and North Africa.

South Africa has the most up to date commercially published law reports due to the

stable internal demand. Namibia and Botswana also publish law reports but they are

behind by about 2 years and the financial difficulties of recent years have made the

future publication uncertain. The rest of the countries in Southern and East Africa

(excluding Kenya) have years if not decades of unpublished legal precedent. Nearly

all of the criteria that the World Bank uses in ranking the quality of economic life and

the environment for business could be substantially affected for the better by wider

availability of primary legal materials. Improved economic potential together with a

society in which the rule of law is an accepted cornerstone of democracy ultimately

5Per Saville LJ, Bannister v SGB plc and Ors and 19 other appeals [1997] EWCA Civ 1524 (25th

April, 1997)

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promotes an environment of creativity, innovation, peace and prosperity for all

citizens.

In order to reach citizens in African countries, LIIs must also consider local

distribution constraints. For instance, bandwidth and infrastructure expense and

unreliability limit the utility of an exclusively Internet-based distribution strategy for

African LIIs. Whereas Internet penetration is at 10.9% (although it must be noted that

use growth between 2000 and 2010 was 2,357.3%),6 Africa has become the fastest

growing mobile market in the world with mobile penetration ranging from 100% to

30%.7 A recent example of the significant role mobile devices play in affording access

to the Internet was provided by a young student of law at the University of Namibia:

the student contacted SAFLII (the Southern African LII) to comment that – although

the service SAFLII was offering was excellent – that problems of accessing the

Internet from the University had caused him to rely on his mobile phone to access the

Namibian precedent he required for his research. SAFLII subsequently created a

mobile phone ready version of its website. In recent years, Zimbabwe, where Internet

and mobile access is currently highly unreliable, a DVD distribution strategy has been

successfully implemented. Demand for DVD products has grown, but as a strategy,

this is not going to be encouraged. The emergence of Zimbabwe Legal Information

Institute (ZimLII) will encourage more and more people to use internet based

resources.

Solution

LIIs – open-access providers of caselaw, statutes, regulations, and policy documents –

can solve these problems in both civil- and common-law countries. In South Africa

and Kenya, they are well on their way to doing so. AfricanLII believes that a two-

tiered regional approach is the best way to foster open access to law throughout

Africa. A system of national LIIs, supported and advised by an umbrella organization

6 http://www.internetworldstats.com

7 http://www.developingtelecoms.com

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(AfricanLII), provides unique possibilities for incubation, and ultimately a clear path

to sustainability and long-term success.

Tier 1: AfricanLII

AfricanLII will establish itself as the regional partner for new and existing LIIs in

Africa, acting to develop and support a community of African LIIs. All new LIIs

when established have access to the wealth of experience and skills offered by other

members of the Free Access to Law Movement. The AfricanLII will also filter and

contextualize this knowledge into communities of practice geared specifically towards

the needs of African National LIIs.

AfricanLII is already taking an active role in the establishment phase of each national

LII, providing advice and monitoring activities to see where help is needed. As each

LII becomes more adept at its work, the AfricanLII role will become less one of direct

intervention and more that of a partner in creating sustainable activities involving

others in the region. Specifically, such umbrella organization must, in the long term,

avoid being seen in the role of a broker for financial support, as the resulting internal

competition would be disruptive; it is better for AfricanLII to help others help

themselves.

As an umbrella organization designed to help all African LIIs, the AfricanLII will be

in a position to:

a. Monitor the establishment of new LIIs as well as their ongoing work,

intervening where necessary to address challenges based on the experiences of

the AfricanLII to date in setting up LIIs in Malawi, Mozambique and

Swaziland as well as with the advice and support of the broader Free Access

to Law Movement.

b. Facilitate the cross-regional utilization of resources and services.

c. Convene workshops, training, and conferences using digital technologies

where possible.

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d. Host self-organizing communities in fields of significance to Free Access to

Law (such as legal publishing, legal librarianship, technical implementations,

fundraising, grant-seeking and marketing).

e. Provide advisory services in African legal systems, legal information

management, information technology, organizational structure, and business

development.

f. Implement regionally-based monetization strategies that create revenue for

participating LIIs.

g. Advocate Free Access to Law and the role of African National LIIs (a

particularly necessary but time-consuming activity for all, but especially for

startup LIIs)

AfricanLII has determined that the establishment of African National LIIs will

include three phases:

1. The identification of required collections and the establishment of document

flows for these collections;

2. The establishment of streamlined work processes within the LII;

3. The introduction of sustainability models.

The phases may not be linear in their rollout.

AfricanLII Plans for 2011 – 2013

Country Selections

In its first year of operation (2011) AfricanLII will assist six African countries in the

eastblishment of national LIIs. These LIIs would be selected based on a) the

availability of a relatively sophisticated market for the LII and related services; or b)

the opportunity for regionally-focused value offering; or c) geographically strategic

positions on the continent. Countries which will be approached in 2011 for candidate

LIIs are Lesotho, Rwanda, Seychelles, Zimbabwe, Burkina Fasso, Niger and Uganda.

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This initial selection will be confirmed by the end of June through country visits, the

hosting by AfricanLII of a conference for key stakeholders and the compilation of a

report detailing opportunities and challenges for each new LII.

At the beginning of the second year, there will be an evaluation project based on the

LIIs selected from the first stage. Over the course of the next two years, an added

cadre of 18 proposed LIIs would be rolled out according to limitations of budget and

resource availability of the AfricanLII. At present, the proposed candidate countries

for the establishment of LIIs are: Botswana, Burundi, Cap Verde, Guinea-Bissau,

Côte D‟Ivoire, Democratic Republic of Congo, Ghana, Ethiopia, Liberia, Mali,

Mauritania, Mauritius, Madagascar, Nigeria, Senegal, Sudan, Tanzania and Zambia.

AfricanLII will also continue to engage with and provide a forum for mutual support

to established African LIIs, such as SAFLII, MozLII, ULII, MalawiLII, NamLII,

Kenya Law Reports and SwaziLII.

New LII roll-out

Content collections and workflows

The initial reports on the selected countries will include an assessment of the

availability of content collections and recommendations for the initial content

workflows.

The establishment of streamlined work processes with the LII:

From past experiences of working with the courts and legislature in African countries,

it is clear that one of the biggest challenges facing a new LII is ensuring timeous

flows of new judgments from the courts and legislation from the legislature. In many

courts, there exists only a small number of computers, with no or limited internet

access. Many of the computers are not networked. The skills to use the computers for

effective document preparation are in short supply or simply absent. In one instance,

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the court prepared judgments on a computer but deleted the document immediately

after printing. In other courts, judgments are still prepared by hand. There is seldom a

process for the centralized storage of documents. The AfricanLII will work with key

stakeholders to address these challenges.

The introduction of sustainability models:

African National LIIs already established and whose document flows and operations

are reasonably well established (NamLII, MalawiLII, MozLII, and SwaziLII) will be

used to pilot sustainability models with a review of results in the beginning of the

second year. SierraLII has not yet managed to establish consistent document flows

therefore the first year will focus on assisting them with this task rather than on

piloting a sustainability model. The AfricanLII will itself become a model and

potential source of revenue-sharing for African National LIIs through a series of

strategies targeted at providing value added services for users.

The AfricanLII will not attempt to roll out a single-template approach in providing

services to new LIIs. Each country‟s unique environment necessitates a customized

approach. In assisting new LIIs with their start up, the role of the AfricanLII will be to

work with the new LII to accurately assess its environment and assist in defining

strategies that will best achieve the goals of the LII. In order to effectively conduct

this work, the AfricanLII will leverage its existing partnerships with the Southern

African Legal Information Institute (SAFLII) and Kenya Law Reports (KLR) – the

two most well-established and well-regarded Legal Information Institutes in Africa.

For example: the AfricanLII is currently working with SAFLII to expand its

collections in Swaziland – SAFLII is able to provide funding and human resources to

scan historical collections in Swaziland, and the AfricanLII will assist SwaziLII in

setting up and maintaining the expanded collections as well as continuing its work

with the ongoing monitoring and maintenance of Swaziland; KLR have provided

training to MalawiLII on law reporting and are currently working with the AfricanLII

on the potential establishment of an LII in Liberia, sharing the results of work they

have already done in Liberia to provide advice on the formal structuring of law

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reporting; KLR have also been working closely with SAFLII and the AfricanLII on

the implementation of the Akoma Ntoso XML standard for presentation of judgments

and legislation.

Tier 2: African National LIIs

Each LII will provide:

a. current material – this means all judgments handed down within the past week

from all superior courts as well as current legislation in an unconsolidated

format (numbered acts), any consolidations of legislation that may exist as the

product of, for example, law reform commissions, bills and preparatory works

and the government gazette;

b. content integrity – any user accessing information from the LII must be

assured of its completeness and accuracy;

c. a level of comprehensiveness to make the collections useful.

The AfricanLII‟s existing work with establishing new LIIs as well as the work

conducted during the Global Study on Free Access to Law8 have identified some

generic models for the institutionalization of LIIs within existing structures. These

structures are universities, law societies and governments (represented by the

judiciary or the Ministry of Justice). The models also identify significant and

beneficial alliances for LIIs such as: alliances with bar associations and law societies;

solid working relationships with the judiciary and parliaments; engagement with

NGOs and law firms. The business community is an important partner to the LII both

as potential users and as potential investors. If convinced of the public good, they

have access to corporate social investment funds which may be used towards the LII.

These partnerships will ultimately work to serve the citizenry by ensuring that the LII

has access to financial, policy and in-kind support to maintain an environment

conducive to creating the best product possible.

8 http://www.idrc.ca/uploads/user-S/12754256481Methodology_Guide.pdf

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Regional monetization strategies

National LIIs, as well as AfricanLII, are likely to adopt a model of sustainability that

draws on several sources of financial support. AfricanLII relies on the success of the

regional sustainability activities for support to the smaller markets of some national

LIIs. The AfricanLII will need to lead the way in proving that monetization strategies

that do not compromise Free Access to Law can be successfully implemented in the

region. This will be a significant step in creating an environment in which LIIs are

established with a realistic and ultimate goal of self-sustainability. The first initiative

undertaken by the AfricanLII at the regional level will be the implementation of the

African Lawyer Directory.

Revenue Diversification

The AfricanLII and the LIIs it has helped to establish must, within the first year, have

found alternative funders or sources of revenue. The sustainability of the initiatives is

immediately compromised if its existence relies on one source of funds.

Relationship Building

The AfricanLII, as an umbrella organization, should facilitate the creation of effective

communities of practice for all users of LII information: technical, legal or lay person.

The website will host forums for users. The conferences and workshops will provide

more conventional channels for information sharing and debates. All technologies

will be leveraged by the AfricanLII in order to grow its relationships with partners

and other stakeholders.

Advocacy

The AfricanLII is developing an advocacy programme. The programme will include

contributions by subject matter experts (such as: Andrew Rens, former legal fellow of

the Shuttleworth Foundation and an expert in copyright; Eve Gray, honorary research

association at the University of Cape Town and project director of the

OpeningScholarship Project). The Advocacy programme will ensure that AfricanLII

actively promotes free access to law issues through appropriate channels. So far, this

advocacy programme has targeted Chief Justices in the Southern and East African

region, lawyer bodies etc. It is cheaper and easier to work with organisations that

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operate at a regional level in addition to working with national stakeholder

organisations. All pilot visits necessarily involve speaking to bar associations,

government officials, civil society, the judiciary and in some cases, parliamentary

officials. I must say that the local enthusiasm about our projects has been

overwhelming.

Sustainability

Open-access legal information providers have long had sustainability problems

stemming in part from the difficulties of generating revenue around the free

distribution of any product, and in part because funders have traditionally been more

willing to support the establishment of collections than provide for their ongoing

maintenance. In recent years, LIIs have begun to experiment successfully with

funding models based on the monetization of their websites, the offering of premium

services, sale of related services based on core competencies (such as building

websites for lawyers), and fundraising from private individuals and corporate

sponsors. As with nonprofit organizations in other sectors -- for example, the

symphony orchestra that sells both tickets and CDs -- it has been found that this can

be done in ways that enhance rather than diminish core mission. In particular,

entrepreneurship rests on a continuing, rigorous evaluation of product, processes and

performance that is always beneficial.

The ideal combination of revenue-generating activities will vary from locale to locale;

some (for example, a pan-African lawyer directory) will make more sense as regional

operations undertaken by AfricanLII. But fledgling free-access providers are, by

nature, ingenious, entrepreneurial, and committed. It will remain to us to provide

structures, methods, and support that will develop those assets into sustainable

programs. A competitive process for the selection of candidate LIIs, strict

performance-based criteria for re-funding, the use of matching funds to encourage

individual LIIs to seek local support, and the creation of governance structures that

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result in committed, nimble organizations are all techniques that will help if they are

built in from the beginning.

I must add here that it is important that sustainability is not seen in a parochial sense.

Sustainability of the institution is not the same as the sustainability of Free Access to

Law as a philosophy. If the idea of Free Access takes root, it should not be hard to get

support for the institution. Sometimes a fervent and obsessive concentration on simple

finances results donors sometimes ignoring the countries that may be poor and in

difficulties preferring ones that can sustain institutions. However, the reality is that in

the African sector, challenges relating to governance are often negatively impacting

on economic performance. The result is that, that countries most desperate for the

promotion of the rule of law, access to justice etc may in fact be the least able to

afford contributing to these initiatives.

Evaluation

A major component of the AfricanLII project will be the evaluation of the continuous

evaluation of the success of the AfricanLII itself and that of the national LIIs.

AfricanLII‟s evaluation framework is based on the one developed for the Global

Study of Free Access to Law.9

Most Free Access to Law initiatives tend to adopt a common purpose: to benefit

society at large by providing free access to legal information. The public's right to

know the laws that govern it (and reducing legal insecurity both in economic life and

in society in general) is believed to be fulfilled by harnessing the principles of open

government and open legal systems. That is achieved by providing widespread access

to the law using the technology of the Internet. Benefits may also be somewhat more

modest, affecting principally the users of the Free Access to Law initiative's

resources, such as improved research capacity and access to up-to-date information.

Benefiting society may not be an explicit common goal to all Free Access to Law

9 See above

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initiatives, but providing free access to law is inevitably a universal Free Access to

Law initiative goal. Success, therefore, can be understood in two ways:

1. On the one hand, an initiative can be successful internally. The internal

success of these initiatives is defined as “the capacity to adopt practices that

allow the initiative to produce the promised outputs”. Essentially, this is the

same as asking did the initiative do what it set out to do? This definition

presents two components for examination: organizational capacity (adoption

of practices) and outputs (providing free access to law online). While free

access to law initiatives share a lot in common in terms of the capacities they

develop to conduct the publication of law for free, different, context-

dependent practices are developed by each initiative to achieve context-

dependent goals. Therefore, the notion of success of a free access to law

initiative cannot simply be related to a list of free access to law assumptions,

such as the transparency of the legal system. The notion has to be understood

and interpreted based on what each free access to law initiative set out to

accomplish.

2. On the other hand, transparency of the legal system, for example, cannot be

excluded as a sign of success for an initiative. Success, indeed, can be

external. External success relates to “the initiative's capacity to produce

positive outcomes”. This definition basically translates into the question: is

putting the law online for free resulting in any measurable outcomes? Again,

two components arise through this definition: outcomes for the users of free

access to law, and societal outcomes derived from the use of Free Access to

Law. Outcomes for the users, as mentioned above, include improved research

capacity or maybe reduced expenditures for legal information products.

Societal outcomes derived from the use of free access to law can include

elimination of legal insecurity, or an open government and legal system.

As a free access to law initiative matures, it's expected that it will move from (1)

organizational success, to (2) successful production of outputs, which leads to (3)

outcomes for users and (4) positive societal outcomes as a result. As this process takes

place, it is expected that it also change directions: the outcomes shape the outputs, and

influence the processes of the organization. This is the beginning of sustainability: as

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an initiative is successful in each of these four components, the chances of

sustainability are incrementally improved. It is important to highlight, however, that

although internal and external outputs and outcomes are distinct in this conceptual

model so that they may be evaluated using distinct research methods, success must

truly be understood as a holistic concept. Success components will be investigated

separately, but evaluated comprehensively.

Qualitative Evaluation

For evaluation purposes, the success components thus described will be annually

evaluated qualitatively through a series of interviews with project team members of

all Africa based LIIs and through feedback mechanisms (such as polls and online

questionnaires) distributed to users.

Quantitative Evaluation

Quantitative evaluation of the success of the Free Access to Law initiatives will be

used to substantiate the qualitative data collected through interviews and

questionnaires.

Organizational Success

Organizational success metrics will take the form of two main components: 1)

quantity, and 2) quality of the collections. It is a reasonable assumption that the

initiative‟s capacity to deliver is also indicated by these two components. The metrics

will be substantiated for relevance to the community it serves by website utilization

statistics.

Quality: key indicators are the number of databases and the number of documents

available. Each initiative will be assessed for the number of databases online by the

end of September 2011; the increase in the number of databases since October 2010

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or – if the initiative did not exist – the number of databases at initiative launch.

Similarly, the initiative will be assessed for then number of documents per database

available by the end of September 2011; the increase in documents since October

2010 or since the initiative‟s launch.

Quality: key indicators are: whether – or to what extent - the initiative has achieved

the goals it set itself at inception (these are individual goals set per initiative and are

encouraged to have a metric component); comprehensiveness of collections measured

against available material such as law reports and government gazettes.

Website utilization statistics: since the website collections exist to serve the

information purposes of its users, it is evidently insufficient to have collections that

are not being used. Utilization statistics will be gathered that indicate: the most used

collection on the website and by whom they are being used (lawyers, universities,

government, international, national); increase in number of unique visitors to the site

over the funded period or since initiative inception; and provenance of access.

External Success

External success of the initiatives can be measured by the societal outcomes derived

from the use of the initiative by Legal Education, Policy and Law making institutions.

This is an abbreviated list of potential beneficiaries of Free Access to Law since all

the manifestations of societal improvements are not understood n a way that would

currently support the gathering of quantitative metrics. For example, since there are

no clearly established metrics for measuring changes in the transparency of the legal

system and Rule of Law or changes in the efficiency of the judiciary, these will be

evaluated qualitatively through the interviews and questionnaires alluded to in the

previous section.

Quantitatively, we can review academic course materials to see if the initiative is

included in the distributed course materials for students or registration of the faculty

on the initiative‟s website (all registration is voluntary); website utilization statistics

can also be assessed for searches indicating comparative research. Policy and law

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making institutions will be asked to provide inputs to formal quantitative-based

questionnaires designed to assess whether the existence of the initiative is assisting in

the legal drafting process.

Conclusion

In Africa, pioneering efforts by the South African Legal Information Institute

(SAFLII) and Kenya Law Reports demonstrate that the potential can become a reality

that benefits judges, lawyers, government, corporate and private citizens. Throughout

most of Africa the state of access to legal information remains deplorable. We

believe that this situation can be transformed -- realistically and relatively quickly --

by the establishment of in-country open-access publishers (LIIs) operating with the

support of a regional partner (AfricanLII) that provides facilities and services aimed

at providing substantive expertise, technical assistance, business services, and a

setting for dialogue and exchange.